Difficulties with trials have left the Obama administration, like its predecessor, relying primarily on military detention without trial to hold terrorists.

Granted, Goldsmith uses the lawyerly trick of hiding the agency in his statement–substituting “disfavor grew” for “Republicans drummed up disfavor because it polled well”–to hide his faulty logic. But what he’s basically saying is that: (1) there’s no big deal with civilian courts, as the Bush experience shows, (2) nevertheless a bunch of fearmongerers who just happen to come from Goldsmith’s own party have been bad-mouthing civilian trials for crass political reasons, and therefore (3) civilian trials are just too difficult to pull off.

The rest of Goldsmith’s op-ed follows from this artificially created difficulty.

The correct response, for someone in Goldsmith’s position, would be to say, “stop being such cynical assholes, Republicans, this is about law, not your political stunts!” But instead, he wrings his hand and invents a new legal system to work around the difficulty created by his colleagues in the Republican party.

Which offers him the ability to make this move, which addresses an issue that has nothing to do with closing Gitmo:

Courts have given their general blessing to military detention as a legitimate form of terrorist incapacitation. But military detention still raises hard legal questions, about which Congress has said practically nothing. As a result, unaccountable judges are making fateful detention decisions, demanding release of some whom the administration thinks are dangerous terrorists.

[snip]

Second, acknowledge that military detention will remain the primary basis for holding terrorists, and strengthen the system. The president will eventually need Congress’s help, not only to put Guantanamo detentions on firmer footing but also to support the growing global fight against terrorists beyond traditional battlefields. The main legal foundation for targeting and detention in places such as Pakistan, Somalia and Yemen is the September 2001 congressional authorization to deal with the Sept. 11 attacks. But as dangerous terrorists have ever-dimmer connections to Sept. 11, the government is bumping up against the limits of what this authorization permits.

Again, Goldsmith hides his logic here. But what he’s actually saying is, “those mean judges on whom our entire legal system relies have pointed out that we’ve illegally been holding people who have nothing to do with 9/11″ (and in fact have been doing so since the Bush Administration collected a lot of people who they called terrorists but weren’t tied to al Qaeda), “so we need to invent some means to hold them and more like them even though we have no legal basis to do so.” Sure, he, like John Bellinger, notes that the Obama Administration is pushing the legal limits of what the AUMF for Afghanistan legally authorized. But what he’s really calling for is some new legal authorization to just pick up anyone anywhere in the world and hold them indefinitely and maybe give them a civilian trial if we feel like it.

In the process he ignores the larger logical problem with this argument. Yes, the international community recognizes military detention as legal during times of war.

But what Goldsmith is advocating for is that Congress create some legal justification for military detention of those we are not at war with.

Now, Cap’n Jack isn’t really a big fan of international law binding US actions, which may be why he introduces this idea with so little thought, the same way he dismisses the symbolic value of closing Gitmo.

But if Congress were to pass a law granting the Executive the authority to unilaterally declare organizations terrorist groups, and on that basis, to indefinitely detain those alleged to be members without even the guise of war as a time-limiting factor, my guess is the international community would look none too fondly on it. It would be a new stain on our international reputation, added to the still-oozing sore of Gitmo.

And Jack Goldsmith, whose entire op-ed is premised on allowing his party to do anything it wants for political gain, doesn’t see where this kind of unilateral Executive power might lead.

0 Responses to Cap’n Jack’s Crackerjack Logic!

Goldsmith isn’t offering a solution to the Gitmo problem; he’s simply trying to bury it. At the top of his column he said this, and then never mentioned it again:

Many terrorists there are too dangerous to release and, for a variety of evidentiary reasons, cannot be brought to trial. Our allies have taken fewer detainees than we would like. These men will thus have to be held in U.S. custody.

Cap’n Jack must not have previewed his column. I think the word “forever” is missing at the end of that last sentence.

Never mind that whole Constitution/Magna Carta/habeas corpus thing. They died while Cap’n Jack was at OLC, and he just wants to give them a nice clean burial and get everyone to move along.

Right. Even Lindsey Graham wouldn’t buy off on civilian trials in the US.

But if Cap’n Jack is sure that the detainees won’t be granted any rights to stay in the US–which is the canard the Republicans have used to oppose civilian trials in the US–then maybe he should say so.

And Jack Goldsmith, whose entire op-ed is premised on allowing his party to do anything it wants for political gain, doesn’t see where this kind of unilateral Executive power might lead.

Actually, he’s too smart to not see where this kind of unilateral Executive power might lead. He just thinks it won’t be applied to him.

If there’s one thing history teaches us, it’s that the second victim of the thugs, once they are turned loose, are the guys who turned them loose. The first victims of the thugs are often innocents, with a few of the turners-loose’s targets mixed in. In carrying out that initial mission, the thugs realize they – not the people who turned them loose – have the power. So they exercise it and take over.

Goldsmith thinks he (and his friends) and reasoning/rationality will somehow be able to stuff the thugs back into the box once they get loose. Doesn’t happen, particularly when the organized structures of keeping the thugs in line have either been subverted by making low-level thuggery a criterion for advancement in the organized structures, or when the organized structures have been so vitiated by neglect or design as to be useless.

Which is pretty much where we are – somewhere between turning the thugs loose and them finishing the takeover. And Goldsmith wants to further this, not stop it.

Goldsmith’s in the position of the learned geometer trying to tell us he’s figured out a way to square the circle, all the while knowing full well both that it’s impossible and that we know it’s impossible and that he’s just lying to cover the fact that he spent years of time and other people’s treasure on his project and should get a walk nonetheless.

Or he’s in the position of telling us he’s the alchemist who, despite all his prior failures, has finally figured out just how to pull off turning this lump of shit into gold, if only we give him the laboratory back.

Take your pick – he’s a bullshitter relying on his distinguihsed academic pedigree to carry his line of shit through scrutiny.

EW,
Thanks for uncovering this putrid mess. One thing that jumps out at me is the lack of any due process.

unaccountable judges are making fateful detention decisions, demanding release of some whom the administration thinks are dangerous terrorists.

Here he his protesting due process, and giving undue license to what the “administration thinks” as the benchmark to be defended. Where is the process to determine whether or not the detainee really is a dangerous terrorist? He wants the administration to be judge and jury.

All of Capn Jack’s process suggestions are shams, designed to provide a fig leaf of legitimacy while guaranteeing the outcome he (or the administration) wants. Our founding fathers would be outraged.

I was disappointed in President Obama’s news conference (just concluded) at his response to a question about Gitmo and trials of detainees. Basically, he didn’t seem all that far from Goldsmith’s op-ed. He seemed to think that Military Commissions could conduct trials protecting defendant’s rights, find’em guilty, and lock’em up in maximum security prisons. No trace of “innocent until proven guilty,” and even “guilty until proven innocent” seemed not to allow for the “proven innocent” part. He seemed to advocate the POV that the ONLY way the detainees might escape being judged guilty is if they were prevented from using some of the evidence they have against them.

He did show some sensitivity to how these trials are perceived overseas, and regarded that as important (unlike Bush, who didn’t give a dam*). But he still seems to think that the Military commissions can produce “fair” trials.

A great article on Cap’n Jack’s new folly. I can’t believe this kind of shit is still being debated in the nation’s newspapers. And a big thanks to EW for calling out that “disfavor” bullshit by Goldsmith. “Disfavor” just sort of “grew”, eh? Do people really fall for that kind of crap?

One problem is that no one who asks the GITMO questions bothers to ask them with real examples tied to them – asking about, for example, whether or not we still have London chefs being held on mistaken, but clung to, assertions that he ran an al-Qaeda training camp between courses and how Obama knows the answer, one way or another, without an open and transparent process.

NO on asks him, for example, whether or not he is ready to admit now that the US did kidnap and abuse or conspire to arrange for the abuse of Maher Arar and Khalid el-Masri and what their recourse is supposed to be with no courts.

No one asks him where KSM’s children are and if the detention forever extends for six degrees.

No one asks him when he is going to release the CIA memo on GITMO detentions fro August of 2002 that informed the WH that a large chunk of the GITMO detentions are mistakes.

No one asks him what is supposed to happen to those mistakes when the WH response, as spoken by Addington and readily confirmable by Bellinger if Obama would just agree to let require him to speak, is that the President has already made his determination and won’t be changing it – what is the recourse? What is the recourse when a President with unlimited and unchecked powers of military detention snatches men and children from around the world and then sends in interrogators with the marching orders that, “no one leaves here innocent.”

But in the end, they shouldn’t have to ask him. He knows these questions – he’s never given a damn about the answers. Like scribe pointed out for Goldsmith, Obama thinks he’s one of the charmed elite and he doesn’t have to bother with the questions bc they’ll never affect him.

a win-win, unless the palestinians don’t matter. He was using the term undisputed territory, referring to the portion that he thought they would be offered by Israel. The correct term is occupied. Abbas was to stay at the table and wait for crumbs that fall off the table. The reporters were good with initial questions but didn’t challenge him on follow up.

Not that it’s worthwhile, but to give Goldsmith a quick, but more serious, read than he deserves he does make as EW points out, one decent point, but only after it has been made for a couple of years now by “the left.” That point is that Obamaco and the end of Bushco have been increasingly going after “dangerous terrorists” (incentivized to terrorism by the things Goldsmith and his crew brought to the table) that have thing to do with 9/11 and so the AUMF is getting to be a shrinking loincloth.

OTOH – he *forgets* that his OLC, in positions he nevr rejected in any OLC memo – authorized not only what is being done overseas, but huge violations of the Constitution domestically, all premised on free standing Executive power. A better use of his pen might have been to do something about that while he was at OLC than to pontificate NOW about the coverage provided by the AUMF.

A few other points.

One, when he clings to GITMO like a Pennsylvanian to guns and God – he pretty much ignores a) Geneva Conventions prohibitions, as war crimes, against transport of civilians out of country; and b) Geneva Conventions requirements for a real, cognizable and due process based tribunal to allow for objection by the detained to protest their status as combatants. IOW, he wants to abandon our commitment to the GCs as a part of his love for GITMO.

Second, he ignores the fact that we have existing Sup Ct case law now that says those at GITMO are required to have habeas access, so he’s proposing having the Exec and Congress work together to circumvent the one writ so important it was memorialized in the text of the Constitution.

Third, he basically makes the argument that forever detentions are better than trials or military commissions bc a) trials are gonna be hard and b) military commissions “bring few legitimacy benefits, especially abroad, because they lower civilian justice standards and apply only to non-citizens.” Now think that through – not as a WaPo op piece journalist or Hahvard law prof, but as a normal person. Military commissions have no legitimacy, so lets replace them with forever detentions without charges. That’ll fix our legitimacy problem abroad and gosh golly, knowing that the US claims the right to snatch and grab anyone named Khalid … or John … and hold them in forever detention – that’s sure going to work to de-radicalize the international response to the US. Heck – what country wouldn’t extradite someone named Khalid, or John, or Viktor, or Abdullah, to a nation that claims the right to shift gears at any time and from time to time to take K,J, V or A out of the legal system and toss them into forever military detention. Reasoning lik that is as clear as krystal nacht.

Finally – and this is really a spiffy point – he says, if you do have a trial, here’s what you do. Go ahead and torture to get your confession, but then don’t ask for a death penalty. That’ll make the trials just awesome.

…do not seek the death penalty at trial. Many alleged terrorists plead guilty. Most of the hard legal and political problems in trials — including the use of classified information and coerced confessions — arise in the penalty phase, when defendants can seek and introduce any conceivably probative evidence. Many problems with terrorist trials go away if we simply deny terrorists their sought-after martyrdom.

Ok – let’s start by ignoring the fact that if they were really seeking after martyrdom, they wouldn’t be fighting that death penalty sentncing all that much. But then look at what he’s advocating – tell alleged terrorists that they “plead” to whatever we put in front of them (no one leaves innocent) OR we hold them forever anyway. And either way – we ignore any review of “coerced” confessions.

I think what is disturbing about Goldsmith’s op-ed is the high levels of BS with which it is suffused. Just look at the first sentence:

Nine years after Sept. 11 and 20 months into the Obama presidency, our nation is still flummoxed about what to do with captured terrorists.

Here and throughout his op-ed Goldsmith never says these are suspected terrorists. He just assumes they really are terrorists. In other words, he has already found them guilty. What he talks about in the rest of his piece is just atmospherics. But this early admission is key. Goldsmith begins with a tacit rejection of the rule of law. But in typical Orwellian logic, he then wants Congress to validate with laws this rejection of the rule of law. You can also see this in his reference to

unaccountable judges are making fateful detention decisions, demanding release of some whom the administration thinks are dangerous terrorists.

These “unaccountable judges” are in fact ruling on habeas petitions, the ultimate foundation for any system based on the rule of law. Goldsmith apparently doesn’t have the balls to say he doesn’t believe in habeas corpus so he just obliquely smears it.

But again reading his op-ed, I am struck by the two narratives he has going in it. The surface one about “pragmatic” changes to “legalize” and regularize proceedings and a second more insidious one that Goldsmith implies but can’t bring himself to enunciate which obliterates the concept of law and turns it into a series of fiats.

That is it precisely. No one … “involved” … in any of “this” thinks (or believes) that “consequence” will “hit” in their lifetimes. Suggesting that all these astute elites figure, or have been advised, that the empah’s got about a half century of “play” left in it.

The assertion that the international community allows for detention, etc., doesn’t qualify in any way whether this be declared war on not. The U.S. has been parsimonious when it comes to declaring war and the power to detain, etc., is not established clearly, as far as I can tell. I cannot believe the international community acknowledges or concurs with this implicitly or explicitly.

I can’t stand to watch him anymore, but I’m guessing he didn’t get questions on the 9th circuit decision, either – asked whether he was going to follow the advice from the 9th and come clean and make reparations? -asked what Constitutional protections exist and what limits there are on the Presidency when the 9th circuit has just said that the WH can engage in any kind of offenses against anyone, citizen or non-, guilty or not-, by simply using “covert contracts” to engage in torture, kidnap, disappearances, etc.

The scariest part is that Goldsmith’s moral baseline elevated him head and shoulders above past and present DOJ lawyers.

Seriously – that’s the scarey part, that the best DOJ can do for its heroes these days is a torture cover up conspirator who advocated disappearing civlians around the world and leaving them in military black holes because … we can.

The whole institution, and it couldn’t find one or two good men or women so, like torture, it redefined good to be a Goldsmith or a Comey. It’s beyond sad when the heroes are the guys who willingly and without care assert states secrets to cover up horrific acts of indecency and take academic and corporate pay offs for their efforts.

Less and less will be said, by anyone, about the stinking morass, and as the courts wade in deeper, as they must, if only and merely to preserve the “cover’ that protects “them” all … one wonders when it dawn upon the sage jurists that there is no “bottom”?

About the time they’ve sunk to their nostrils, would be my guess.

The legal system now has an expired albatross hung around its “authority”, in both Constitutional and cultural realities.

It is beyond my comprehension that reasonable and rational members of the legal profession can stomach or tolerate that this travesty may long endure.

Obama says the problem is proving the chain of custody of the evidence given it was taken from a field of battle.

In the same presser he was describing all the Gitmo detainess as having been captured “in theater.” This is an absurd claim unless the “theater” is “the World”. I wish Obama would admit that a lot of the detainees were captured by bounty hunters on the basis of dubious, if any, evidence. These are not the worst of the worst, but the most unfortunate of the unfortunate.

I’m guessing he didn’t get questions on the 9th circuit decision, either – asked whether he was going to follow the advice from the 9th and come clean and make reparations?

Actually, this is a scary point. What the 9th was suggesting, in effect, is that if the Admin really wants to get rid of this lawsuit, they should make reparations (i.e., hush money) to prevent this case from getting to the Supremes and risk being hung out to dry.

It would be cheap for the Admin to offer each and every plaintiff a million bucks worth of reparations to make this case go away and avoid the Supremes.

And Jack Goldsmith … doesn’t see where this kind of unilateral Executive power might lead.

I respectfully disagree. I think he knows exactly where this kind of thing leads and he is fine with that.

People in power and close to those with power never feel threatened by that power. So why would he care? He thinks this will never come back to bite him. Just as the public doesn’t care. They never think that they will be the individuals harmed by an abuse of power. So what’s to get all worked up about?

It’s only those of us who take the time to wonder… what if that were me? my dad? my sister? my best friend? We’re the ones who oppose this sort of thing. And last I checked, “empathy” is not fashionable in Republican circles.

Yeah, I think a court ought sometime to delve into the sordid history of Reynolds. It is an excellent point. Because of the large size of the 9th Circuit, they have the ability to have en banc panels of eleven members. The only other Circuit that has this capability is, I think, the 7th; but they do not yet do it. As to how the panels are selected, I am not sure other than that the original panel of three are always included in the eleven.

[Sacramento Bee] Editorial: ‘Renditions’ ruling a setback for rule of law

“America needs a thorough cleansing from this travesty, but that appears less and less likely to happen. In a 6-5 ruling on Wednesday, the federal appeals court based in San Francisco refused to let five former rendition prisoners even have their day in court.”